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Supreme Court ruling on land title will affect natives, government, industry

OTTAWA—The Supreme Court of Canada will rule Thursday in a landmark British Columbia case that is expected to be one of the most significant aboriginal law decisions in the court’s history.

The judgment will tackle the question of aboriginal title and will have big repercussions for years to come as industry, governments and aboriginal groups move to develop — or block — mining, energy and other resources or infrastructure like the Northern Gateway pipeline across contested lands throughout Canada.

Native groups, industry and governments are hoping the top court will clearly set out how to define aboriginal title — or ownership of land in the absence of a treaty ceding it — in practical terms.

At the heart of the case is whether governments and courts should take a broad view of aboriginal ownership of lands historically used and occupied by First Nations, or do nomadic living, hunting, trapping and fishing traditions of aboriginal peoples lead to a narrower view of what territory they can lay claim to.

A secondary question is whether provinces or only the federal government can regulate things like timber rights over land where aboriginal title is recognized or claimed.

“It’s really significant,” said University of Ottawa law professor Angela Cameron. “It’s going to determine whether a First Nation can get a little piece of land or a big piece of land.”

No matter what the court decides, however, experts say the high court has never held that aboriginal title means an indigenous group would get exclusive rights to and use of the land.

Still Thursday’s ruling has more than the Tsilhqot’in group on tenterhooks.

There are large tracts of unceded territory in many provinces, including Ottawa itself. “The Supreme Court of Canada, Parliament buildings, the city of Ottawa are on the same kind of territory as the Tsilhqot’in,” said Cameron.

“It’s unceded. There’s never been a treaty with the Algonquin of Ontario.”

The principles the court lays out Thursday may well impact talks around other key developments, such as Ontario’s massive mining play in the north, known as the Ring of Fire.

In November, the high court judges examined an aboriginal title claim by six bands known as the Tsilhqot’in, who number about 3,000 people and live in the remote Chilcotin central interior region of British Columbia.

Their legal battles began over clear-cut logging permits granted in the 1980s. A series of blockades eventually drew promises by the B.C. government not to grant timber rights without their permission — a promise that was soon broken.

One chief, Roger William, in the name of his Xeni Gwet’in First Nations Government, launched the current title claim, with the rest of the bands joining his bid to expand the Tsilhqot’in title over a large tract of land, approximately 4,380 square km. The area is not subject to any competing claim by another First Nations group, as is the case in many regions of B.C. where there are overlapping and competing claims.

Lawyer Thomas Isaac, who has written 10 books on aboriginal law and litigates cases on behalf of industry and government clients across Canada, said in an interview this may be the first formal declaration by the high court of aboriginal title.

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And whether the court takes an expansive view, as a B.C. trial court did, of the Tsilhqot’in’s title to land, or a much more limited view as the B.C. Court of Appeal did, Isaac expects the ruling to maintain a theme that has shown up in every aboriginal case:

“I would assume you will see the court continue to do what it’s done in all of these decisions . . . try to strike a balance between the governmental authority on the one hand, and the rights of aboriginal peoples on the other hand.”

In the lower courts, the Tsilhqot’in title claim was met with sharply contradictory decisions.

B.C. Supreme Court Judge David Vickers, who heard more than 339 days of evidence over five years, ruled in 2007 that the Tsilhqot’in could show title over about 40 per cent of the traditional territory they claimed where they lived prior to contact with Europeans, amounting to about 1,750 square km of land, based on their historic and regular use.

But the B.C. Court of Appeal overturned that, saying the Tsilhqot’in title was “site-specific” or limited to a small number of particular sites where the aboriginal group was able to demonstrate “intensive use” and occupation.

It was a huge blow to aboriginal groups, dozens of whom have intervened in the William case.

The Tsilhqot’in people argued fiercely before the Supreme Court that the B.C. Court of Appeal approach was inflexible, extreme and more restrictive than anything seen at common law.

Such a rigid standard “it accords no weight (let alone equal weight) to Aboriginal perspectives on occupation or the manner in which the society used the land to live.”

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